1Suits brought in forma pauperis are governed by 28 U.S.C. §

1915.

 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DARAY HARVEY : CIVIL ACTION

 :

 v. :

 :

CITY OF PHILADELPHIA :

VIA PHILADELPHIA DISTRICT :

ATTORNEY'S OFFICE : NO. 05-5102

M E M O R A N D U M A N D O R D E R

Plaintiff, a prisoner at S.C.I. Greene, seeks to bring a civil

action in forma pauperis,

1 without prepayment of fees or security

therefor, asserting claims pursuant to 42 U.S.C. § 1983. The

Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110

Stat. 1321 (April 26, 1996) (the "Act"), which amends 28 U.S.C. §

1915, establishes certain financial requirements for prisoners who

are attempting to bring a civil action or file an appeal in forma

pauperis. 

Under the Act, a prisoner bringing a civil action in forma

pauperis must pay the full amount of the $250 filing fee. 28

U.S.C. § 1915(b)(1). The prisoner must submit a certified copy of

his inmate trust fund account statement for the 6-month period

immediately preceding the filing of his complaint so the Court can

determine how the $250 filing fee will be paid. 28 U.S.C. §

1915(a)(2). The prisoner must obtain this statement from the

appropriate official of each prison at which he was or is confined.

Id. The Court must then "assess [the prisoner's financial status]

and, when funds exist, collect, as a partial payment of any court

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HARVEY v. CITY OF PHILADELPHIA Doc. 2

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fees required by law, an initial partial filing fee of 20 percent

of the greater of-- (A) the average monthly deposits to the

prisoner's account; or (B) the average monthly balance in the

prisoner's account for the 6-month period immediately preceding the

filing of the complaint . . . ."

Plaintiff's inmate trust fund account statement for the sixmonth period immediately preceding the filing of his complaint

shows average monthly deposits of $140.06, average monthly balances

of $60.86, and a current balance of $48.00. Based upon this

financial information, an initial partial filing fee of $28.00 is

assessed. The Superintendent or other appropriate official at

S.C.I. Greene, or at any prison at which plaintiff may be

incarcerated, will be directed to deduct $28.00 from plaintiff's

prison account, when such funds become available, and forward that

amount to the Clerk of the United States District Court for the

Eastern District of Pennsylvania. Thereafter, each time that the

balance in plaintiff's prison account exceeds $10, an amount no

greater than 20 percent of the money credited to plaintiff's

account during the preceding month will be deducted and forwarded

to the Clerk of Court until the filing fee is paid. 

Plaintiff may not have known when he brought this action that

he must pay the filing fee, and that even if the full filing fee,

or any part of it, has been paid, the Court must dismiss the case

if it finds that the action is: (1) frivolous or malicious; (2)

fails to state a claim upon which relief may be granted; or (3)

seeks monetary relief against a defendant who is immune from such

relief. 28 U.S.C. § 1915(e)(2)(B). If the Court dismisses the

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case for any of these reasons, the Act does not permit the prisoner

to get his filing fee back. 

We shall give plaintiff twenty (20) days from the date of this

order to decide whether he wants to proceed with this case. If by

that time, plaintiff decides not to proceed with the case, he need

not pay the $250 filing fee.

For the foregoing reasons, it is, this day of

September, 2005, hereby ORDERED that:

1. The petition is DENIED WITHOUT PREJUDICE to its

reassertion in accordance with the terms of this order; 

2. If plaintiff files with the Court within twenty (20) days

from the date of this order a notice that he wishes to proceed with

this action and thereby obligate himself to pay the $250 filing

fee, this action will be reinstated; and 

3. The Clerk of Court shall CLOSE this case statistically.

BY THE COURT:

S/ J. CURTIS JOYNER, J. 

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